State of Tennessee v. Marlo Davis
2015 Tenn. LEXIS 463
| Tenn. | 2015Background
- In 2006 Mario Davis and co-defendant Latarius Sawyer were charged with alternative counts of first-degree felony murder (attempted robbery) and first-degree premeditated murder for the November 9, 2006 shooting death of Quincy Jones in Memphis.
- Several eyewitnesses (including Jarcquise Spencer, then 10; Demetrius Holloway; Laraine Bobo; Clarence “Dusty” Bailey) gave varying accounts; Spencer originally gave a written statement and testified at the preliminary hearing that Davis pulled a gun and shot the victim, but at trial he claimed no memory of the events.
- At trial the jury acquitted Davis of the two first-degree murder theories but convicted him of second-degree murder (as a lesser-included of felony murder) and reckless homicide (as a lesser-included of premeditated murder); the trial court merged reckless homicide into second-degree murder and sentenced Davis to 40 years.
- The trial court admitted Spencer’s written statement and preliminary-hearing testimony as substantive evidence over Davis’s objections, invoking Tenn. R. Evid. 803(5), 803(26), and 804(b)(1); Davis argued these rulings violated evidentiary rules and his confrontation rights.
- On appeal Davis challenged (1) admission of Spencer’s prior statement/testimony, (2) sufficiency of the evidence, and (3) relief for allegedly inconsistent/mutually exclusive verdicts. The Tennessee Supreme Court affirmed the conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Admission of Spencer’s written statement under Rule 803(5) (recorded recollection) | Statement was made when fresh, Spencer identified it, and he now lacked recollection — so admissible | Spencer was feigning memory loss; Rule 803(5) requires genuine insufficient recollection | Court: admissible; feigned memory does not defeat Rule 803(5); trial court did not abuse discretion |
| Admission under Rule 803(26) (prior inconsistent statements) | A prior detailed statement and recorded testimony are inconsistent with trial claim of no memory and may be admitted if trustworthy | Lack of memory is not an “inconsistent statement” because it is absence of statement; trustworthiness contested | Court: prior statements are “inconsistent” with claimed lack of memory; admissible after trustworthiness hearing; no error |
| Admission under Rule 804(b)(1) (former testimony of unavailable witness) & Confrontation Clause challenge | Spencer demonstrated unavailability (lack of memory) and testified at trial so Davis had opportunity to cross-examine; Confrontation Clause satisfied | Spencer’s feigned memory means he was not truly unavailable and admission violated confrontation rights | Court: trial court reasonably found Spencer unavailable under Rule 804(a)(3); Owens governs Confrontation Clause — cross-examination opportunity suffices; no constitutional violation |
| Inconsistent / mutually exclusive verdicts and double jeopardy | State did not argue inconsistency requires relief; only one judgment/sentence entered, lesser merges into greater | Jury convicted second-degree (knowing) on one count and reckless (only) on the other — verdicts are mutually exclusive and require relief/merger to avoid double jeopardy | Court: inconsistent convictions do not automatically entitle defendant to relief; majority rule preserves jury verdicts; reckless merged into second-degree for sentencing; no double jeopardy violation |
Key Cases Cited
- Owens v. United States, 484 U.S. 554 (Supreme Court of the United States) (memory-impaired witness’s prior identification and testimony admissible where defendant had opportunity for cross-examination)
- Powell v. United States, 469 U.S. 57 (Supreme Court of the United States) (inconsistent jury verdicts generally not a basis for overturning convictions)
- Jackson v. Virginia, 443 U.S. 307 (Supreme Court of the United States) (standard for appellate review of sufficiency of the evidence)
- Dunn v. United States, 284 U.S. 390 (Supreme Court of the United States) (discussion of jury lenity and inconsistent verdicts)
- Wiggins v. State, 498 S.W.2d 92 (Tenn. 1973) (Tennessee follows the rule that inconsistent multiple-count verdicts are not necessarily reversible)
- State v. Franklin, 308 S.W.3d 799 (Tenn. 2010) (standard of review for admissibility of evidence: abuse of discretion)
- State v. Brown, 311 S.W.3d 422 (Tenn. 2010) (second-degree murder as a result-of-conduct offense; mental-state inferences)